Forgot your password?
Please enter your email & we will send your password to you:
My Account:
Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
Article 1 Definitions
1.1 As used in this Contract, the following terms shall have the meanings set out below. Words indicating persons or parties include corporations, and other legal entities, as well as unincorporated joint ventures except where the context requires otherwise.
Advance Payment Guarantee means the guarantee (if any) providedunderArticle10.1, and which may form an Appendix hereto.
Affiliate Companies means in relation to any person, any entity controlled, directly or indirectly, by the person, any entity that controls, directly or indirectly, the person or any entity directly or indirectly under common control with the person. For this purpose , control of any entity or person means ownership of a majority of the voting power of the entity or person.
Appendix or Appendices means the appendix or appendices to the Contract referred to throughout these Conditions of Contract.
Article means any article or sub-article of these Conditions of Contract as the context requires.
Assumptions means the statements contained in the document referred to in the Special Conditions regarding the reasonable conclusions derived from data provided in writing by the other Party and setting out non-provided data (if any) that are necessary for the execution of the Works.
Breach of Contract means any omission or failure on the part of any of the Parties to fulfil any of its obligations or duties under the Contract.
Breach of Warranty means any discrepancy, whether intentional or not, failing or non-conformity in respect of a Warranty.
Business Day means, unless otherwise agreed, a Day on which banks are open for general business in the Country or, in the case of a local Business Day, in the country in question.
CDB means the Combined Dispute Board appointed under this Contract.
Certificate of Completion is a certificate s sued for Completion of the Works or part thereof, as the case may be.
Certificate of Final Acceptance is the certificate is sued according to Article49.13.
Completion means the moment the Works or any part thereof, as the case maybe , have been physically completed to the extent they are ready to be commissioned and Completion of Construction and Mechanical Completion shall have the same meaning.
Conditions of Contract means these General Conditions of Contract as maybe amended by the Special Conditions of Contract.
Contract means the Main Contract Form, including the Special Conditions and these General Conditions of Contract together with all Appendices and subsequent alterations and additions agreed in writing.
Contract Date means the Date the Contract becomes effective asset out in Article 2.
Contract Price has the meaning set out in Article40.1.
Contractor means the legal or natural person(s) named as Contract or in the Contract, its agents, assignees agreed by the Employer and the legal successors in title to this or these person(s).
Contractor’s Group means the group composed of Contractor, its employees, agents and representatives, including the employees, agents and representatives of its suppliers, contractors, consultants, Subcontractors, co-owners and Affiliated Companies.
Contractor’s Documents mean all documents, software and any other form of recording and transferring of information submitted or to be submitted by the Contractor under this Contract to the Employer, including, without limitation, the construction documents, licences and permits, operation and maintenance manuals and as-built drawings, all as specified in this Contract as being
[Page16:]
part of the Work, or, if there is no such specification, as may be identified by referring to the requirements of Article 33.
Contractor’s Equipment means the Equipment owned by the Contractor and provided for the Works and/or as may be set out in an Appendix.
Contractor’s Personnel means persons in the employ of or seconded to the Contractor and acting for it, or other persons authorised to act for the Contractor, in relation to the Works.
Contractor’s Variation Proposal has the meaning set out in Article 35.6.
Cost includes any element of reasonably incurred and documented expense plus Overheads.
Country means the country where the Site is located.
Day , Days or Date/s mean, unless otherwise agreed, references to a 24-hourcalendarda y in the Gregorian calendar with year meaning 365 days under that calendar , unless it is a366-da y leap year. Periods of time are calculated from the Day after receipt of the relevant instruction or other action requiring an activity to commence.
Defect means a visible, hidden or latent non-conformity with the Employer’s Requirements, in the Works.
Defect Correction Period means the period for correction of Defects as established under Article 49.
Delay Damages means the monetary compensation paid under Articles 37 or 38.4.
Design includes sketches, schemes, models, plans, drawings, technical criteria or standards, and descriptions with aesthetic or functional elements for making up a building, machine, facility or other object or process intended for the Works. Design also includes, without limitation, performance descriptions, specifications or requirements.
Employer means the legal or natural person(s) named as employer in the Contract, its agents, assignees agreed by the Contractor and the legal successors in title to this or these person(s). If the Employer named in the Contract does not have separate legal personality under the laws governing its status, the Employer includes any organisation of which it is a part that does have separate legal personality.
Employer’s Group means the group composed of Employer, Employer’s Affiliated Companies, Employer’s other contractors of any tier and/or Employer’s consultants, employees and/or agents.
Employer’s Equipment means any Equipment provided by the Employer for the Works and/or as may be set out in an Appendix.
Employer’s Personnel means persons in the employ of or seconded to the Employer and acting for it, or other persons authorised to act for the Employer in relation to the Works.
Employer’s Requirements means the document(s) prepared by, or on behalf of, the Employer setting out the comprehensive Employer’s requirements for the Works, at the signing of the Contract, in the form of an Appendix and any subsequent Variations thereto. The Employer’s Requirements include, without limitation, documents specifying the purpose, scope, time frame for completion, and/or basic and/or other technical criteria, and/or conceptual elements for the Works.
Equipment means all appliances, machinery, vehicles, tools or other things required by the Contractor for the execution and completion of the Works and the remedying of any Defects. Equipment excludes, however, Temporary Works, Plant, materials and any other things intended to form, or forming, part of the Works.
Final Acceptance has the meaning set out in Article 49.12.
Force Majeure has the meaning set out in Article 54.
Good Practice means the exercise of that degree of skill, diligence, prudence, foresight and that would reasonably and ordinarily be expected from a professional person under circumstances the same as, or similar to, the Project.
Gross Negligence means the conscious or reckless disregard for the need for, and the use of, Good Practice.
Guaranteed Performance means the performance levels of the Works (if any) that are guaranteed by the Contractor to be achieved during the Performance Tests as may be set out in an Appendix to the Special Conditions to this Contract.
Hazardous Materials means any hazardous or toxic substance or hazardous or toxic waste, contaminant, or pollutant as defined in or regulated by the law governing such matters.
[Page17:]
Instruction is an Employer’s requirement expressed in writing after the Contract Date, that the Contractor shall do or shall refrain from performing a task, or shall perform tasks at a different time. An Instruction may or may not be a Variation.
Invoice Period means, if not otherwise defined, a calendar month commencing on the first Day of the month and ending on the last Day of the month. The first Invoice Period shall begin on the Day the Start Date and end on the last day of that month.
Main Contract Form means the main contract form, including the Special Conditions of Contract, to which these General Conditions of Contract Appendices are supplemental.
Method Statement means a statement or statements submitted by the Contractor describing how the Contractor proposes to meet the Employer’s Requirements, detailing how the Contractor intends to deploy Plant, personnel, material, Equipment and other resources to accomplish the Works in the Time to Taking-Over.
Minimum Performance means the minimal level of performance of the Works (if any) to be achieved during Performance Tests, as are set out in this Contract.
Negligence means any act or omission which is not in line with Good Practice.
Notice has the meaning set out in Article 63.1.
Notice to Proceed means the Notice given under Article 36.2.
OSS has the meaning set out in Article 34.5.
Overheads means administrative costs which cannot be directly attributed to the execution of the Works under the Contract and which are expressed in a percentage in the Special Conditions (or if not stated in the Special Conditions, a reasonable percentage).
Payment Certificate means an application for payment submitted in the form set out in an Appendix to Article 42.3 or, if there is no such Appendix, in a form established by the Contractor and the Employer, which application is subsequently approved in writing by the Employer and sent to the Contractor.
Performance Tests means those tests (if any) to be performed, specified as such in the Contract, in accordance with an Appendix (if any).
Plant means any and all apparatus, machinery or devices (if any) intended to form, or forming, part of the Works.
Profit means a profit margin expressed as a percentage in the Special Conditions (or if not stated in the Special Conditions, a reasonable percentage)
Project means, if the context so requires, the larger project (if any) the Employer is developing, of which the Works are a part.
Punch List has the meaning set out in Article 47.10.
Reference Date means, in the case of a bidding procedure without negotiations, the Date twentyeight (28) Days prior to the latest Date for the submission of Tenders, and, in the case of a negotiated contract, the Date twenty-eight (28) Days prior to the first signature on the Contract.
Representative means the physical person(s) appointed from time to time by the Contractor or the Employer under Article 18 to act as such under the Contract.
Rules has the meaning set out in Article 64.2.
Schedule of Contractual Dates is the schedule (if any) set out in or in accordance with Article 38.1.
Section means any part of the Works or Site as the context requires.
Site (or Sites as the context requires) means the land or other places made available to the Contractor by or on behalf of the Employer and on, under, in or through which the Works are to be constructed. The Site does not include places the Contractor has taken possession of or has access to for the purposes of the Works, but which were not made available to the Contractor by or on behalf of the Employer.
Special Conditions means the annexure to the Main Contract Form described as Section I—Special Conditions and referred to throughout these General Conditions of Contract, which Special Conditions describe particular amendments to these General Conditions of Contract.
Start Date means the Date determined in accordance with Article 36.2.
[Page18:]
Subcontractor means any person named in the Contract as a Subcontractor, or any person appointed as a Subcontractor, for a part of the Works, and the legal successors in title and/or interest to this or these person(s).
Taking-Over means the moment when the Works are or are deemed to be provisionally accepted by the Employer under Article 47, and Provisional Acceptance shall have the same meaning. Taking-Over can be accomplished by Section, if the Parties agree, or shall occur in fact if the Employer actually takes possession of a Section of the Works.
Taking-Over Certificate means the Certificate(s) issued under Article 47.7, specifying that the Taking Over Conditions of the Works, or section thereof, as the case may be, have been achieved.
Taking-Over Conditions has the meaning set forth in Article 47.2.
Taking-Over Date has the meaning set forth in Article 47.1.
Temporary Works means all temporary works of every kind required in or around the Site for the construction and/or completion of the Works and the remedying of any Defects.
Tender means the Contractor’s tender (Contractor’s offer to execute the Works) and any additions or modifications to that document or its appendices.
Time Schedule means the schedule provided for under Article 38.4.
Time to Taking-Over means the number of Days the Contractor has to achieve Taking-Over of the Works or particular Sections of the Works, as this time may be amended in accordance with the Contract.
Turnkey means the obligations of the Contractor to design, procure, supply, execute, install, commission, test and hand over, including the remedying of potential Defects, on time and within the agreed Contract Price, the Works as defined by the Employer as to scope, purpose, performance and the functions of the Works as set out in the original Employer’s Requirements and the Assumptions and as amended in accordance with the provisions of the Contract.
Variation includes any change to the Project or Works, or their location, or the time in which they or any part of them are to be constructed, including, without limitation, any change to the type, form or composition of materials to be used, sequence(s) or timing of construction, performance or other specifications, or any changes relating to the Design.
VAT /GST_ means the applicable value-added tax, goods and services tax or equivalent consumption tax charged on any goods and/or services (usually described as a percentage of the selling price) howsoever described.
Warranty means a written undertaking or statement in the Contract or an undertaking which is implicit under the applicable law or Good Practice that a certain fact in relation to the Contract or Works is or shall be as it is stated or promised to be.
Week means a period of seven (7) Days.
Works means the physical works to be completed by the Contractor under this Contract and the associated supplies and services, including software as appropriate.
Article 2 Entry into force of the Contract
2.1 This Contract shall become effective and be binding on the Parties on the Date it is signed by both Parties or on agreed effective date (the “Contract Date”). The responsibility for, and expense of stamp duties and similar charges (if any) imposed by law in connection with the signature of this Contract shall be borne by the Employer.
Article 3 Good faith and fair dealing
3.1 In performing their obligations under this Contract the Parties shall act in accordance with the principles of good faith and fair dealing under or in connection with the Contract. The provisions of this Contract and the conduct of the Parties during the pre-contractual phase shall be interpreted in accordance with the principles of good faith and fair dealing.
3.2 Good faith and fair dealing in this context includes, without limiting this duty, the duty to co-operate, to not intentionally mislead, and to carry out the Contract to the mutual benefit of both Parties, accepting that each is entitled to achieve its reasonable objectives, and requires the Parties to:
3.3 Whenever consultation is required by this Contract, the Parties shall exchange their opinions prior to any final decisions being taken about the matter requiring consultation.
Article 4 Language of the Contract
4.1 Unless otherwise specified in the Special Conditions or otherwise in the Contract, the ruling language of this Contract and any disputes or differences decided in relation to it, is English.
4.2 If there are versions of any part of the Contract that are written in more than one language, the version that is in the ruling language shall prevail.
4.3 Unless otherwise agreed in writing, the language for day-to-day communications between the Parties on or off the Site shall be the ruling language.
4.4 Minor communications that do not need to be recorded may be in any language.
Article 5 Applicable laws
Governing substantive law
5.1 This Contract shall be governed by and construed in accordance with the law(s) agreed by the Parties in the Special Conditions. In the absence of such agreement, this Contract shall be governed by and construed in accordance with the law(s) of the Country. Such choice of law shall refer only to substantive law and shall not include its conflict-of- law rules.
Laws and regulations of the Country
5.2 The Parties shall, in performing the Contract, comply with all applicable laws in force in the Country.
Article 6 New or changed laws, standards, regulations, etc.
6.1 If there is a change of applicable laws, regulations, agreed standards, or their interpretation after the Reference Date, which may affect the performance of the Contract, either Party shall give Notice to the other of the change as soon as they are published.
6.2 In the event that such change was not reasonably foreseeable by the Contractor at the Reference Date, and:
Article 7 Interpretation of the Contract
7.1 The documents forming the Contract are to be read together and interpreted as mutually explanatory of one another. If there is a direct inconsistency in specific obligations, then for the purposes of interpretation, and unless otherwise agreed, the priority of the Contract documents shall be in accordance with the following sequence:
7.2 The above sequence of interpretation shall be adopted only to the extent required to deal with an inconsistency or ambiguity. In the event of conflicting terms, specific terms agreed take priority over general statements, and terms in Contract documents created at a later Date govern over terms in earlier Contract documents. Subject to the foregoing, the terms of the groups of documents set out in the sub-sections of Article 7.1 all have equal importance within their group.
[Page20 :]
7.3 Unless specified elsewhere in the Contract, the words reasonable efforts shall mean, with regard to a given obligation, the efforts that a determined and reasonable Party would use to comply with that obligation as promptly as reasonably possible.
Article 8 Assumptions; statements about measurements
8.1 It is agreed that when either Party makes or has made statements of measure, whether distances, dimensions, strengths, qualities, quantities, volumes or such, these statements or figures are taken as statements of fact. Each Party must make all reasonable efforts to ensure that any such statement is accurate.
Article 9 Obtaining permits, planning and other permissions
9.1 Unless otherwise set out in the Special Conditions, each Party shall obtain at its own expense all permits, licences or approvals from all local, state/provincial or national government authorities or public service undertakings, which are required to be obtained by it in its name and which are necessary for the execution of the Works, including those that are required for the performance by both the Contractor and the Employer of their respective obligations, materials under the Contract, and those required for the importation of the Contractor’s Equipment and the Plant into the Country.
9.2 Each Party shall, at the reasonable request of the other Party, assist the other Party at its own expense in a timely and expeditious manner in obtaining permits, licences or approvals, which are required for the performance of any part of the Works, for delivery (including clearance through customs) of Plant, materials and Contractor’s Equipment, and for the completion of the Works. Such requests may also include requests for assistance in applying for any necessary government consent to the export of Contractor’s Equipment when it is removed from the Site.
Article 10 Guarantees, bonds or other securities
10.1 To the extent provided in the Special Conditions or elsewhere in the Contract, each Party shall provide (at its own expense) the guarantee(s), bonds or other securities required under the Contract.
10.2 Unless otherwise agreed, each Party shall deliver any guarantee(s), bonds or other securities to the other Party within twenty-eight (28) Days after the Contract Date. Each such security shall be issued by an entity and from within a country (or other jurisdiction) acceptable to the other Party, and shall be in the form set out in the Special Conditions (if any), or as otherwise agreed by the Parties.
10.3 Unless otherwise agreed in the Special Conditions, all guarantees and counter-guarantees under this Contract shall be subject to the Uniform Rules for Demand Guarantees (URDG) in the most recent version at the Contract Date, as they are current at the time of the signing of this Contract, including, inter alia, its extend or pay provisions and the requirement to be issued by a AA or higher-rated bank.
Article 11 Demands under guarantees, bonds or other securities
11.1 Any Party who will have made a payment demand under any guarantee, bond or other security when it was not entitled to do so or when the value of the payment demand materially exceeded such Party’s proper entitlement, will be obliged to compensate the other Party for all damages, losses and expenses (including legal fees and related expenses) caused to them by such payment demand.
11.2 Each Party shall endeavour to return the guarantee(s), bonds or other securities to the other Party within twenty-one (21) Days after the security expires, and/or when the Contractor has become entitled to receive the Certificate of Final Acceptance. All securities howsoever described shall be invalid, null and void on the Date that they should have been returned, whether returned or not.
Article 12 No agency—independent contractor
12.1 The Parties agree that neither Party will perform any act or make any statement to any person to the effect that it is acting or has acted under this Contract as agent for the other Party.
The Contractor shall be an independent contractor with respect to the Project, each of its parts, and the Works, and neither the Contractor nor its Subcontractors nor the employees of either shall be deemed to be agents, representatives, employees or servants of the Employer in the performance of the Works, or any part thereof, or in any manner dealt with herein.